Online copyright infringement has become an increasingly important and contentious issue, but one all too often obscured by misunderstanding, lack of awareness and confusion, particularly as to who is liable.
Much has been made of the impact of piracy regulations on individuals sitting in their bedrooms downloading films and music, but less insight has been given on the liability of those who make internet access available to others who illegally download and file share.
This could be private individuals allowing family members or guests access, businesses offering customers an internet connection or those whose wireless has been hijacked by neighbours or passers by.
If done without the licence of the owner, downloading, uploading and sharing copyright software, music and films will infringe copyright. This could not only result in civil infringement proceedings, it can be a criminal offence.
While most non-commercial copyright infringement is not a criminal offence, non-commercial file-sharing to such an extent as to prejudicially affect the copyright owner is, assuming the offender knows or has reason to believe that doing so is an infringement.
Where the offence was committed by a company with the consent or tacit understanding of a director, manager or secretary, that person will also be guilty of the offence.
Caught in the net?
It is not just the actual infringers who find themselves in the sights of copyright owners and their lawyers. Although the personal details of internet subscribers are protected by the Data Protection Act 1998, and ISPs cannot disclose these on demand by copyright owners, they can be required to do so by court order.
It has therefore become increasingly common practice for copyright owners to ascertain the IP addresses of copyright infringers, and then apply for a court order requiring the relevant ISP to disclose personal details of the subscribers using those IP addresses.
The subscribers identified will receive a lawyer's letter demanding undertakings and payment of a specified amount (typically between £300 and £1,200) to avoid being sued for an injunction and damages.
The effect of this is that any subscriber whose internet connection was accessed by someone, with or without permission, who then engaged in infringing activities online, could find their IP address made available to copyright owners and then be on the receiving end of an infringement claim.
Even if the subscriber was not responsible for the download in question, it could be difficult to prove that they did not infringe if the material was downloaded on to their computer.
These tactics of copyright owners have proved controversial as subscribers may take the view that it is cheaper simply to pay the demanded amount, rather than cough up legal fees to fight the matter.
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